Uruguay Round. The GATT. A Negotiating History ( ) KLUWER LAW INTERNATIONAL TERENCE P. STEWART, EDITOR VOLUME IV: THE END GAME (PART I)
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1 The GATT Uruguay Round A Negotiating History ( ) TERENCE P. STEWART, EDITOR VOLUME IV: THE END GAME (PART I) KLUWER LAW INTERNATIONAL The Hague London Boston
2 TABLE OF CONTENTS Introduction xxi Agriculture 1 I. Introduction 3 II. Chronology of the Final Stage of Negotiations 3 III. Key Issues in the Final Stage of the Negotiations 17 A. Request to Modify Volume-Based Special-Safeguard Provisions 17 B. Resolution of the Market-Access Dilemma in Japan and Korea Korean Compromise Japan Concession The Market-Access Commitments 22 C. Renegotiation of Blair House Agreement Internal Support a. Exemption from Reduction Commitments 24 b. Insulation from WTO Challenges and Countervailing Duty Actions Market Access and Tariffication Export Subsidies 27 D. Canada's Partial Split from Cairns Group with Respect to Import Quotas For Supply-Management Products 28 E. Special Treatment of Developing and Net-Food-Importing Countries 30 F. "Zero-for-Zero" Proposal on Oilseeds 31 IV. Textual Changes from the Dunkel Draft to the Final Agreement 33 A. Overview of the Agreement 42 B. Specific Changes to the Text of the SPS Agreement 44 V. Review of Market-Access Commitments of Selected Countries 45 A. United States 45 B. European Union 48 C. Canada 52 D. Australia 54 VI. Conclusion 55 A. Consistency with Original Negotiating Objectives 55 B. Concluding Remarks 57 Annexes 59 Comparison of Agriculture Provisions 61 GATT Documents 167 Bibliography 169 GATT Articles 183
3 xü Contents I. Understanding on the Interpretation of Article II.l(B) 184 II. Understanding on the Interpretation of Article XVII 186 III. Understanding on the Balance-of-Payments Provisions 187 IV. Understanding on the Interpretation of Article XXIV 189 V. Understanding in Respect of Waivers of Obligations (Article XXV) 191 VI. Understanding on the Interpretation of Article XXVIII 192 VII. Conclusion: The Punta Del Este Agenda 193 Annex: GATT Documents 195 Bibliography 199 Customs Valuations 203 I. Changes in Dispute Settlement 205 II. Special Rules for Developing Countries 207 III. Other Annex III Provisions 208 IV. Incorporated Ministerial Decisions 209 V. "Final Provisions" 211 Annex: GATT Documents 213 Bibliography 217 Subsidies and Countervailing Measures 219 I. Final Negotiations: December 1992-December A. Proposed Changes to Dunkel Draft Agreement on Subsidies and Countervailing Measures: December 1992/January B. Period of Stalemate: January 1993-November C. Final Stretch: November-December Final Negotiations and Changes to Dunkel Draft The U.S. Proposal to Expand R&D Subsidies 229 D. Completion and Wrap-Up: December 1993-April n. Subsidies and Countervailing Measures Agreement: A Summary of the Final Act Text of April III. Subsidies and Countervailing Measures Agreement 236 A. Part I: General Provisions Definitions of "Subsidy" Specificity 236 B. Part II: Prohibited Subsidies ("Red Light") Prohibited Subsidies Remedies 237 C. Part III: Actionable Subsidies ("Yellow Light") Adverse Effects Serious Prejudice Remedies 239 D. Part IV: Non-Actionable Subsidies ("Green Light") 240
4 Contents xiii 1. Assistance for Research and Development Assistance to Disadvantaged Regions Assistance to Promote Adaptation of Existing Facilities to New Environmental Requirements Notification and Review of Non-Actionable Subsidy Programmes Consultation and Authorized Remedies 244 E. Part V: Countervailing Measures Initiation and Subsequent Investigation Standing Evidence Consultations Calculation of the Amount of a Subsidy Determination of Injury Cumulation Definition of Domestic Injury Provisional Measures Undertakings Imposition of Countervailing Duties Retroactivity Anti-Circumvention Measures Duration and Review of Countervailing Duties Public Notice Judicial Review 254 F. Part VI: Institutions 254 G. Part VII: Notification and Surveillance 255 H. Part VIII: Developing Country Members 255 I. Part IX: Transitional Arrangements Existing Programmes Transformation into a Market Economy 257 J. Part X: Dispute Settlement 258 K. Part XI: Final Provisions Provisional Application Final Provisions 259 Annexes 263 Comparison of Subsidies and Countervailing Duties 265 GATT Documents 415 Bibliography 417 Trade-Related Investment Measures 424 I. Introduction 425 II. The Events of 1993 and
5 xiv Contents A. 1993: Expressions of Concerns by the LDCs 425 B. 1994: Completing and Signing the Final Agreement 429 III. The Final Agreement on Trade-Related Investment Measures 429 rv. The Results: Disappointment or Success? 432 V. WhatIstoCome?WhatIsPast May Well BePrologue 434 A. Article III 434 B. Article XI 435 VI. Beyond WTO/GATT: Other Treatments of Foreign Investments 436 A. OECD's Multilateral Agreement on Investment 436 B. Other Trade Agreements: the NAFTA 437 C. Other Trade Agreements: APEC 437 D. Unilateral Liberalization 438 E. GATT/WTO Accession 439 VII. Conclusion 440 Annexes 441 Comparison of Trade-Related Investment Measures 443 GATT Documents 455 Bibliography 457 Trade-Related Aspects of Intellectual Property Rights 463 I. Introduction 465 II. The TRIPS Negotiations from Punta Del Este to the Dunkel Draft 467 A. Positions of the Parties Copyright and Related Rights Trademarks Geographical Indications Industrial Designs Patents Layout-Designs (Topographies) of Integrated Circuits Protection of Undisclosed Information 471 B. The Negotiations from 1986 to the Dunkel Draft From 1986 to the Mid-Term Review in December a. Problems to be Addressed Copyrights 472 Sound and Video recordings 472 Computer programs 472 Duration of Copyright protection Patents 473 Appellations of origin and geographical indications 473 Limitations on patentable subject matter 473 Discriminatory protection 474 First to invent 474
6 Contents xv II. Compulsory licensing Restrictions on foreigners' patent rights 3. Trademarks Prominent foreign trademarks Enforcement provisions 4. Industrial Designs Misappropriation 5. Layout-Designs Protection 6. Other Procedural obstacles to obtaining rights in other countries 7. Dispute Settlement and Enforcement Counterfeiting of branded goods Piracy of books, sound and video recording Discriminatory treatment of imported products Enforcement b. Draft Agreement to Discourage the Importation of Counterfeit Goods c. Initial Proposais 2. A TRIPS Framework Agreement in Proposais During C. Accomplishments in the Dunkel Draft 1. General Provisions and Basic Principles 2. Standards Conceming the Availability, Scope and Use of Intellectual Property Rights a. Copyrights b. Trademarks c. Geographical Indications d. Industrial Design e. Patents f. Layout-Designs g. Trade Secrets h. Contractual Licenses 3. Remaining Provisions External Pressures Affect the TRIPS Negotiations A. U.S. Special 301 Actions Force Change During Uruguay Round Negotiations 1. Brazil 2. Argentina 3. Thailand 4. India
7 xvj Contents 5. China 6. Taiwan USTR's Priority Watch List Saudi Arabia South Korea European Union Australia Hungary Poland Philippines Turkey Egypt 507 B. NAFTA 508 C. Andean Pact 508 IV. Chronology of the Uruguay Round Negotiations from the Dunkel Draft to the Final Act ( ) 509 A. The Post-Dunkel Draft Stalemate 509 B. U.S. Fast-Track Negotiating Authority Expires As the Clinton Administration Takes Over 514 C. Remaining Market Access Issues Dominate Negotiations 515 D. The Clinton Administration Demands Changes in the TRIPS Draft 518 E. Changes to the TRIPS Text During the Final Hours of Negotiations 525 V. Attempts to Revise the Dunkel Draft on TRIPS 529 A. Patentable Subject Matter: Protection of Plant Varieties 530 B. Pipeline Protection: Patent Protection for Pharmaceuticals and Agricultural Chemicals 533 C. Compulsory Licensing 535 D. Dispute Settlement 537 VI. The TRIPS Enforcement and Dispute Settlement Provision: A Significant Achievement 538 A. Countries Dissatisfied With Enforcement and Dispute Settlement Provisions in WIPO Conventions Demand Improved Procedures in the TRIPS Agreement 538 B. TRIPS Enforcement and Dispute Settlement Provisions Enforcement Provisions A New Forum for the Resolution of Intellectual Property Disputes Between Countries 544 C. The Role of the WIPO in the Uruguay Round Negotiations 547 D. WIPO's Alternative Dispute Settlement Provisions 551 VII. Future Role of Section
8 Contents xvii VIII. NAFTA's Intellectual Property Provisions: A Model for Future Negotiations 560 A. Scope of the TRIPS Agreement 561 B. The Scope of the NAFTA Agreement National Treatment Encrypted Program-Carrying Satellite Signals Pipeline Protection for Pharmaceutical and Agrochemical Products Dependent Patent Compulsory Licensing Ten-Year Minimum Trademark Term Marketing Approval Adverse Effect on Trade Transition Periods 570 IX. Reaction to the Final Act 571 X. Conclusion 574 Annexes 577 Comparison of Trade-Related Aspects of Intellectual Property Rights 579 Sibe-by-Side Comparison of TRIPS and NAFTA Intellectual Property Provisions 673 GATT Documents 745 Bibliography 755 Services 775 I. Introduction 777 II. Summary of the General Agreement on Trade in Services 778 A. The Framework Agreement Part I: Article I: Scope and Definition Part II: General Obligations and Disciplines 779 a. Article II: Most Favored-Nation Treatment 779 b. Article III: Transparency 779 c. Article III bis: Disclosure of Confidential Information 780 d. Article IV: Increasing Participation of Developing Countries 780 e. Article V: Economic Integration 780 f. Article V bis: Labor Markets Integration Agreements 781 g. Article VI: Domestic Regulation 781 h. Article VII: Recognition 781 i. Article VIII: Monopolies and Exclusive Service Suppliers 782 j. Article IX: Business Practices 782 k. Article X: Emergency Safeguard Measures Article XI: Payment and Transfers 782
9 xviii Contents m. Article XII: Restrictions to Safeguard the Balance of Payments 783 n. Article XIII: Government Procurement 783 o. Article XIV: General Exceptions 784 p. Article XIV bis: Security Exemptions 784 q. Article XV: Subsidies Part III: Specific Commitments 785 a. Article XVI: Market Access 785 b. Article XVII: National Treatment 785 c. Article XVIII: Additional Commitments Part IV: Progressive Liberalization 786 a. Article XIX: Negotiation of Specific Commitments 786 b. Article XX: Schedules of Specific Commitments 786 c. Article XXI: Modificarion of Schedules Part V: Institutional Provisions 787 a. Article XXII: Consultation 787 b. Article XXIII: Dispute Settlement and Enforcement 788 c. Article XXIV: Council for Trade in Services 788 d. Article XXV: Technical Cooperation 788 e. Article XXVI: Relationship with Other International Organizations Part VI: Final Provisions 788 a. Article XXVII: Denial of Benefits 788 b. Article XXVIII: Definitions 789 c. Article XXIX: Annexes 789 B. Annexes Annex on Article II Exemptions Annex on Movement of Natural Persons Supplying Services Under the Agreement Annex on Air Transport Services Annex on Financial Services Second Annex on Financial Services Annex on Negotiations on Maritime Transport Services Annex on Telecommunications Annex on Negotiations on Basic Telecommunications 792 ffl. GATS Negotiations 792 A. The 1993 Game Plan 792 B. Fall 1993 Negotiations Textual Issues 797 a. Applicability of the GATS to Certain Measures Maintained by the Parties 797 b. Taxation 797
10 Contents xix 2. Scope of the GATS 801 a. Measures Relating to Social Security 802 b. Measures Relating to Judicial and Administrative Assistance 803 c. Measures Relating to the Settlement of Disputes Pursuant to Bilateral Investment Protection Agreements 803 d. Measures Relating to Entry and Stay of Natural Persons 804 e. Measures Relating to Entry and Stay of Natural Persons Pursuant to Certain Bilateral Agreements 804 C. Drawing the 1993 Negotiations to a Close: Resolution of Textual Issues, Scheduling Commitments, and Submission of Lists of MFN Exemptions 805 D. Sector-Specific Negotiations Financial Services Maritime Transportation Services Audio-Visual Services Movement of Natural Persons Basic Telecommunication Services 821 E. Decisions to Continue Negotiations Negotiations on Financial Services Negotiations on Maritime Transport Services Negotiations on Basic Telecommunications Negotiations on Movement of Natural Persons 825 IV. GATS Negotiations (1994) 826 V. Conclusion 827 Annex 829 Comparison of Trade in Services 831 GATT Documents 931 Bibliography 933
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